K. S. Okeaya Vs Madam Ekiomado Aguebor (1970)

LawGlobal-Hub Lead Judgment Report

UDOMA, J.S.C. 

This appeal is against the judgement of the High Court of the Mid-Western State, Benin Judicial Division. It has been brought by K. S. Okeaya-Inneh (hereinafter to be referred to in this judgement as the appellant). The appellant has complained against the judgement and has urged this Court to have it set aside on five grounds, which are as follows:

(1) The learned trial judge erred in law and on the facts in failing to observe that the plaintiff has failed to discharge the onus of proving that the land in dispute was the land alleged to have been sold to her by Jarin Robinson.
The learned trial judge erred in law and on the facts in finding that in 1961 Jarin Robinson gave the plot in dispute to the plaintiff in compensation for the loss of the plot originally sold to her as per exhibit A when
(a) there was absolutely no evidence to that effect;
(b) the plaintiff made no such claim either in her statement of claim or in her evidence.
“(3) The learned trial judge erred in law in failing to dismiss the plaintiff’s claim when neither her pleadings nor her evidence and that of her witnesses set out precisely the nature of the title she claims or the native law and custom relating thereto.
(4) The learned trial judge erred in law in failing to observe that exhibit A, being an estate contract, was inadmissible in evidence by virtue of section 16 of the Land Instruments Registration Law.

(5) Judgement is against the weight of evidence.”
The suit which gave rise to this appeal was instituted by Madam Ekiomado Aguebor (hereinafter to be referred to in this judgement as the  respondent) against the appellant. The claims of the respondent before the High Court were for:
(1) A declaration of title to a piece or parcel of land;
(2) #100 damages for trespass; and
(3) A perpetual injunction.
For the purpose of this appeal we consider that paragraphs 1, 3, 4, 5, 8 and 9 of the respondent’s statement of claim contain the crux of her case for the proper appreciation of which the averments therein made are set out hereunder:
“(1) The plaintiff is a housewife and petty trader whose address is at 14, Old Siluko Road in the city of Benin and has at all times material to this action been resident in Benin within the jurisdiction of this honourable court.

(3) The plaintiff has at all times material to this action been owner in possession of a piece or parcel of land lying situate and being at Ward 23L Benin City the particulars of which are given as measuring approximately 92 feet by 100 feet and known as Block P.B.T.B.B. 102-2070 which with its dimensions and abuttal’s are more particularly described and delineated in pink on plan No. OM.2355 attached to this statement of claim and filed with the same in this action. The plaintiff shall rely on the said plan.

(4) The plaintiff at all times material to this action has evinced positive acts of ownership and possession of the said piece or parcel of land to wit:
(a) The plaintiff customarily obtained title to the said piece or parcel of land by applying to the Plot Allotment Committee of Ward 23L on or about 1961, which application was approved by the Oba of Benin on or about 1962. The plaintiff shall rely on the said approved application.
(b) The plaintiff on or about 1964 took steps to prepare a building plan in respect of the said piece or parcel of land hereinbefore mentioned in paragraph (3) hereof and the said building plan would be relied upon during the trial of this action.
(c) Before the plaintiff took steps in 1964 as aforesaid to prepare a building plan in respect of the said piece or parcel of land she had, on the approval of her application to own and possess the said piece or parcel of land, planted economic trees to wit:
(i) 25 orange trees
(ii) 10 pear trees, on the said piece or parcel of land.

(d) Over and above the said economic trees planted by the plaintiff as enumerated in paragraph 4 (c) above, the plaintiff planted cash crops to wit: Cassava from year to year on the said land after approval in 1962 as aforesaid.
(e) The plaintiff during the period of time in which she asserted her rights over the said piece or parcel of land did these acts herein-mentioned nee vi, nee clam, nee pereario and the defendant at no time whatsoever disputed the plaintiff’s acts enumerated herein.

(j) The plaintiff was never disturbed by anyone whatsoever during the said period in her enjoyment of possession of the said piece or parcel of land.    .(5) In 1966 the defendant suddenly by himself his servants/agents went forcibly onto the land and uprooted the economic trees and cassava plants herein before enumerated, removed the beacons which the plaintiff caused the Plot Allotment Committee to plan thereon in order to demar-cate the plaintiff’s land. The beacons so removed by the defendant are on the north-west of the plan relied upon in this action.    .
(8) The defendant’s solicitors admitted by their letter dated the 24th day of September, 1966 that the plaintiff was customarily granted the said piece or parcel of land by His Highness the Oba of Benin, but that the said grant to her had been revoked and said inter alia as follows:
“Perhaps it may be useful if you would kindly bring to your client’s notice that what she erroneously believed was a grant of land to her has by necessary implication, and in accordance with custom been revoked by the grantor and so she cannot now be admitted to assert any right to the said plot of land.”
(9) The plaintiff shall rely on the said letter of 24th September, 1966 and shall aver that the defendant is aware of the title of the plaintiff to the said piece or parcel of land and shall further insist during the trial that the defence of the defendant shall be restricted to showing that the plaintiff’s title to the said piece or parcel of land had in fact been revoked by the grantor in accordance with Native Law and Custom.”.
The appellant’s defence to these averments is to be found in paragraph 4, 5, 6, 8, 9 and 13 of the statement of defence the particulars of which are in the following terms:
“(4) The defendant denies paragraphs 3, 4, 5, 7, 8 and 10 of the statement of claim, and will at the trial put the plaintiff to the strictest proof of the allegations therein contained.
(5) In answer to paragraph 3 of the statement of claim the defendant contends that the land in dispute has long before 1961 been a part of a larger area of land which is the property in possession of one Madam Robinson who in 1964 transferred the same to Mr. F. Akenzua of the Ministry of Justice, Benin City by a deed of conveyance dated 29th day of June 1964. In July, 1966, the said Mr. F. Akenzua by a deed of conveyance transferred the land in dispute to the defendant. Both deeds of conveyance which will be founded upon at the trial of this action were registered as No. 42 at page 42, Volume 18, and No. 13 at page 13 Volume 43 of the Lands Registry Office at Benin City respectively.

(6) In specific answer to paragraph 4(c) (d) (e) (f) of the statement of claim the defendant will contend at the trial of this action that the plaintiff has never been in possession of the said land in dispute as alleged. And that the purported claims under paragraph 4(c) (d) (e) if) of the statement of claim namely: the destruction of cash-crops and orange trees are untrue and an afterthought. The plaintiff’s solicitor’s letter of 21st September, 1966 where for the first time the plaintiff laid claim to the land in dispute will be founded upon at the trial.

(8) In answer to paragraphs 5, 6 and 7 of the statement of claim the defendant avers that the land in dispute is his property in possession since July, 1966 when he purchased it in good faith from the said Mr. F. Akenzua for value, and without notice of any incumbrances.
(9) In further answer to paragraphs 5 and 6 of the statement of claim the defendant avers that the building by him on the said land was in exercise of his right of ownership thereof; and will put the plaintiff to the strictest proof at the trial of this action.
(13) In the further answer to paragraphs 3, 4 and 5 of the statement of claim the defendant will strongly contend at the trial that the plaintiff had no right of possession or ever been in possession of the land in dis:-pute. And will ask that his claim be dismissed with substantial costs.
On the pleadings set out above issues were joined; and it fell upon the respondent to prove by preponderance of evidence that she had acquired title to the piece or parcel of land lying, situate and being at Ward 23L Benin City measuring approximately 92 ft. by 100 ft. and known as Block P.B.T.B.B. 102-2070 (hereinafter to be referred to as the land in dispute), in accordance with Bini Customary Law.

In support of her case the respondent at the trial gave evidence herself; called among others, an expert witness as to the procedure and practice sanctioned by customary law for the acquisition of land in Benin Division, and a member of the Plot Allotment Committee for Ward 23L Benin City.

As the learned trial judge in his judgement appeared to have accord, not without justification, having regard to the pleadings and the whole basis of the respondent’s case, and indeed of the case for the appellant, considerable prominence to the expert evidence concerning the mode of acquiring land under Bini Customary Law, it is necessary that the respondent’s testimony be tested in the light of the evidence given by her witnesses notably, Hawdon Omoregbe Uwaifo (P.W.1), the expert on the customary method of acquiring land in Benin Division and Elijah Uwoghiren Irabor (P.W.4), Secretary to Ward 23L Plot Allotment Committee in order to detennine the extent to which she had herself complied with custom in her purported acquisition of the land in dispute. Be it noted that the evidence given by these two witnesses was accepted by the learned trial judge.

Then there is the question about the identity of the land, which is, whether or not the land in dispute was the land purportedly acquired by the respondent as testified to by her, having regard to the evidence of Silverius Okpogie (P.W.5)-the owner of an adjoining plot of land.

The respondent’s case, as far as is relevant for the purpose of this appeal, was that in 1958 she bought a rubber plantation situate in Ward 23L at Uselu in Benin City (the land in dispute) from Madam Jarin Robinson (D.W.1) and obtained a document, exhibit A as evidence of the transaction. In or about 1961, she was taken by Madam Jarin Robinson (D. W.1) before the Plot Allotment Committee of Ward 23L where she applied in writing, exhibit B, to the Oba of Benin through the said committee for a grant of the land in dispute to her under Bini Customary Law. Before the committee, Madam Jarin Robinson (D.W.1) had confirmed that she had sold the land in dispute to her. As a result, the committee according to custom detailed some of their members to inspect the land, which they did in the presence of Madam Jarin Robinson (D.W.1) who at the site pointed out to the members of the Allotment Committee the precise area which she had sold to her. The land was then lying between a plot of land already sold to Silverius Okpogie (P.W.5) and a piece of land, property of the Oba of Benin. Her application, exhibit B was put in after the inspection and after the Plot Allotment Committee had expressed satisfaction and agreement to recom:-mend it to the Oba of Benin for approval, which approval, she subsequently and duly received in 1962.